Opinion:Elias v. City of Tulsa, 2022 OK CIV APP 18
Subject matter:Workers’ Compensation
Date Decided:September 17, 2021
Trial Court:Workers’ Compensation Commission 
Route to this Court:Claimant sought review of an Order of the Commission, which affirmed the Decision of Administrative Law Judge 
Facts:Plaintiff sought workers’ compensation benefits for cumulative trauma binaural hearing loss stemming from twenty-six years as a Tulsa Police Officer. He sought permanent partial disability benefits (PPD) and continuing medical maintenance and repair of hearing aids. An Order was entered in which the administrative law judge (ALJ) determined that Plaintiff had sustained 38% PPD to the ears over and above the preexisting 13.8% disability. The ALJ rejected the assertion that the award for binaural hearing loss should be converted to a whole person impairment, citing to 85A O.S. § 46A(16). The ALJ also determined that the 38% PPD award, which equated to 125.4 weeks, to the ears was not payable to Plaintiff based on the cumulative cap set forth in § 46H. The ALJ identified six prior awards of PPD that Plaintiff had received and determined that the sum total of Plaintiff’s prior awards of PPD equaled 698.74 weeks of PPD, which exceeded the § 46H limit of 350 weeks. The ALJ affirmed that Plaintiff was to be awarded medical maintenance of repair and replacement of hearing aids, but that the award is not payable under 85A O.S. § 46(H). The Workers’ Compensation Commission affirmed the ALJ’s decision. Claimant appealed. 
Standard of Review:Statutory interpretation of 85A O.S. § 46(H) and constitutional claims were alleged, therefore, the issues were questions of law and subjected to de novo review. Brown v. Claims Management. Resources Inc., 2017 OK 13, ¶ 10; Gillispie v. Estes Express Lines, Inc., 2015 OK CIV APP 93, ¶ 18.
Analysis:Plaintiff alleged that the ALJ and the Commission improperly interpreted § 46H’s PPD cap. The Court found the statutory language of § 46H was clear and unambiguous, so it must “give meaning and effect to the words chosen by the Legislature. . .” Tate v. Browning-Ferris, Inc., 1992 OK 72, ¶ 15. Plaintiff also wanted the Court to look to previous versions of § 46H to ascertain legislative intent. The Court declined to do so because the language of § 46H was simply unambiguous and was written in substance from 85 O.S. 2011 § 333, which stated that “The sum of all permanent partial disability awards, excluding awards against the Multiple Injury Trust Fund, shall not exceed five hundred twenty weeks . . .” Because of the mirrored language and just the reduction of the time period, the Court did not need to look at other versions to determine the legislative intent.

Plaintiff argued that § 45C(6) and § 46H have conflicting language. Section 45C(6) provides that “[t]he fact that an employee has suffered previous disability or received compensation therefor shall not preclude the employee from compensation for a later accidental personal injury or occupational disease.” The Court determined that the phrase “shall not preclude” does not conflict with “shall not exceed” because “preclude” demonstrated a legislative expression that is completely different from the meaning of “exceed.” Compensation is attainable for a claimant who received PPD compensation, but 46H places a cap on that compensation.

Plaintiff’s argument that § 46H violated Oklahoma Constitution article II, § 6, which states that “[t]he courts of justice of the State shall be open to every person, and a speedy and certain remedy afforded for every wrong and for every injury to person . . .” was rejected because that clause was intended to be a limitation on the authority of the judiciary and not a limitation on the Legislature. The Court clarified that courts are not able to provide a remedy where the Legislature has not acted to provide one. Plaintiff argued a substantive due process argument as well, alleging the statute weighs too far in employers’ favor. However, due process does not depend on whether there is a balance on the scales between employer and employee, but whether § 46H is rationally related to a legitimate government interest which advances that interest. The statute was meant to protect employers from excessive judgments while also granting employees a measure of damages rewards. Evans & Associates Utility Services v. Espinosa, 2011 OK 81.
Outcome:Order of the Commission affirmed.
Vote:3-0. Gore, P.J., Mitchell, J., and Prince, J. (author) concur.
Other: N/A